Standing Committee B

[Mr. Bill O'Brien in the Chair]

Special Educational Needs and Disability Bill [Lords]

Clause 1 - Education in mainstream schools of childrenwith special educational needs

Tim Boswell: I beg to move amendment No. 4, in page 2, line 8, at end insert
`, or, if the cost is met by a local education authority or otherwise from public funds that either there is a statement in respect of the child under section 324 or the local education authority are satisfied
(i) that his interests require the necessary special education provisions to be made for him at a school which is not a maintained school, and
(ii) that it is appropriate for the child to be provided with education at that particular school.'.
 I welcome you, Mr. O'Brien, and my colleagues to Committee at this early hour. We shall touch on some interesting and important issues today. The amendment is intended to obtain assurances from the Government. 
 I avert briefly to exchanges that took place on Tuesdaythey bear on the amendmentin response to a challenge made by the hon. Member for High Peak (Mr. Levitt) about representations that we were continuing to receive from outside bodies. He was right to say that the Special Educational Consortium did not seek further to amend the Bill. Indeed, I note that the Government did not seek to make further changes, but they have now tabled at least one amendment. 
 I am not sure whether the hon. Member for High Peak received a briefing from Action on Entitlement, a consortium of various disability interests, but that briefing suggests that several important issues have not yet been dealt with satisfactorily that are of concern to many organisations in the voluntary sector. I mention that because amendment No. 4 touches on one of those concerns. I shall come to the substance in a moment, but our request for assurance is not made in a destructive spirit against the general tenor of the Bill; it is made because we cannot sign it off uncritically and without considering its impact. 
 I ask the Parliamentary Under-Secretary of State for Education and Employment, the hon. Member for Redditch (Jacqui Smith) to reply at two levels. The first is what might be termed the legal levelthe shade of Pepper v. Hart stalks us--and the second is at the level of the Bill's operation. That will give us a flavour of what the Government and their advisers and associates see as the likely policy on special schools, so we can go from the particular to the general. 
 I start with the legal point. It may help that the Minister and I are not lawyers, so we do not have the sophistication expected of a lawyer--nor do we have the same price tag as a lawyer taking a case in the High Court. [Interruption.] As the hon. Lady says from a sedentary position, we give extraordinarily good value. However, I do not wish to offend any lawyers in the Committee; indeed, I should like to engage their services in order to tease out the problem. 
 The amendment is directed towards the drafting of proposed new section 316A of the Education Act 1996. Our earlier debates so far have been about new section 316, and the provision that states: 
 ``Duty to educate children with special educational needs in mainstream schools''. 
Proposed new section 316A is headed 
 ``Education otherwise than in mainstream schools''. 
It is an attempt to rule out barriers to education in special schools, and its first subsection states: 
 ``Section 316 does not prevent a child from being educated in 
 (a) an independent school which is not a mainstream school, or 
 (b) a school approved under section 342, 
 if the cost is met otherwise than by a local education authority.'' 
People may decide to pay for the private education of their children, off their own bat and out of their own pocket, because they have had difficulty obtaining a statement or because they and their children would prefer special education. If so, as I construe the provision, they would not break the law and children would be adequately educated by attending non-maintained schools. 
 My legal expertise runs out on some issues raised. On a casual reading, the provision may be loosely construed as providing that the local authority could not pay, even though people may want it do so, because the provision applies only when someone else pays. That would rule out local education authority payment. I am aware that the matter has been considered in the other place by people who are more legally alert than we are. The Minister needs to give the Committee a clear understanding of how the provision operates. 
 As I understand matters, proposed new section 316A enables people to make private arrangements at their own expense, or at the expense of someone who is not the LEA, to secure a private education for their children in a special school. However, on a loose prima facie interpretation, those people could not get the LEA to pay. We have been assured that Ministers do not want to bring about such a situation, so proposed new section 316A may not mean quite what it says it means due to section 348. The amendment uses similar wording to that section, stating that 
``if the cost is met by a local education authority or otherwise from public funds that either there is a statement . . . or the local education authority are satisfied . . . that . . . interests require . . . special education provisions to be made . . . at a school which is not a maintained school, and . . . that it is appropriate for the child to be provided with education at that particular school''. 
Therefore, the LEA would be able to buy the right service or provision for the child. The Minister needs to assure us that section 348 bites and saves the apparent exclusion wording in proposed new section 316. 
 At the back of my mind are concerns expressed to us by legally sophisticated persons of some distinction. I make no claim to that status. Those people are worried that whereas the provision hangs on proposed new section 316, the assurances in section 348they are already in place and can be tied to proposed new section 316do not apply to proposed new section 316A. I need to know from the Minister that they do, and that there is no legal bar to preclude a local education authority from securing that appropriate education for a child in a non-maintained school, if that is the right thing to do. 
 I need reassuring that the saving section applies to both proposed new section 316 and proposed new section 316A, so that a legal minefield does not develop. We must not find ourselves saying, ``We got it right with 316, and that is okay, but now we have introduced 316A, and it is not right, and there is a problem.'' If there is a problem, it will be too late to amend it at the end of this Committee's proceedings. There is concern in the non-maintained special schools sector that we have not quite got that right, and that we have not tabled the amendments required to put it right. It is not a matter, at this stage of the argument, of Ministers' intentions. We must accept that Ministers wish to proceed on the matter with clean hands and in good faith. However, it is extremely important that we have tied it down to our satisfaction, as best we canmost of us in the Committee are not lawyers. We must ensure that the legal safeguards apply.

Evan Harris: I follow what the hon. Gentleman is saying, and I understand his point. However, proposed new section 316A(3) states that proposed new section 316 does not affect the operation of section 348. Only proposed new section 316 could threaten what the hon. Gentleman wants, which is the provision for local authorities to fund placements in independent schools. No such guarantee is required under proposed new section 316A, because the only relevant part of that section is the exception whereby
``the cost is met otherwise than by a local education authority.'' 
Perhaps that is what the Minister will say. I do not understand why the hon. Gentleman cannot be reassured.

Tim Boswell: I am grateful to the hon. Gentleman for that contribution. We are looking for a genuine reassurance from the Minister. If she can give us that assurance, we will be perfectly satisfied on the legal front. It is important that the point is tied up. Although I do not have written representations on the matter, I have been concerned that one or two lawyers of substance are still worried about it. It would be a dreadful thing, which we could not readily put right, if, in our hurry to get the Bill through Parliament, we left a loose end. That is all I want to say on the legal side, because it is for the Minister, given her authority and the advice available to her, to give us those assurances.
 Not only do we seek such assurances, but it would be useful if the Minister could briefly explain how the sections work and interact to achieve what I takecertainly from what Ministers have said in the pastto be a common goal. We all realise that, in the real world, if we were not piling additional legislation on top of existing legislation, we would probably not word or structure the Bill like this. However, that is what we are doing, and we need to be absolutely certain that it works. 
 Having dealt with those legal concerns, I turn to what might loosely be called the real world. I would like to raise two points. First, we are concerned that, in their activities in response to the special needs of individual pupils, local education authorities may look for the cheapest rather than the most appropriate solution, to put it bluntly, and that generally, though not always, provision outside the local authority area or in the private sector will not be used if it is significantly more expensive, even if it would be better for the child. 
 I am sure that I am not unique among hon. Members in having been told by constituents that although they were convinced that their child would do best at a special schoolin my case it might be one in Milton Keynes, over the local education authority boundary, or in Leicestershirethe LEA would not countenance it. I am not saying that parents are always necessarily right. We had an interesting discussion in the previous sitting about how to balance professional appraisal of what is right for a child with parental opinion. That issue will never go away completely. However, we need a legally watertight means of resolving it. 
 I worry about such real-world issues and about what a local education authority might do if it were bent on saving money or trying to avoid its obligations to provide the best solution for a particular child. The Committee will remember that our debate on Tuesday was about the need for the child's interests to come first. An LEA such as I described might get hold of the parent, who would after all not be a legal sophisticatewe do not claim to be, and there is no reason why a parent should beto explain new section 316A(1). The authority could explain the subsection as not ruling out paying privately for independent education. However, it could also be construed as meaning that the LEA could not pay for it. 
 Not every parent will have time to read the provision in conjunction with section 348, and to conclude: ``Ah, everything is protected by section 348. Fancy that; the LEA can pay after all.'' I can just imagine how a county chief education officer or director of special needs might, in a letter, quote subsection (1) selectively, to shut out parents who might have an entitlement under the provisions taken together. I cannot prove that that will happen, but I predict that it probably will. Given that that remains a possibility, and while we need a purely legal interpretation from the Minister, we need to make it clearly understood that LEAs are entitled to pay for the provision in question. The wording should be clear enough to prevent LEAs from fobbing people off by claiming that it would be outside their powers. 
 It would also be helpful if Ministers could flesh out their account of how finding the most appropriate education for a child should be approached. Some concern remains in the independent or non-maintained special schools sector about whether the Bill will crowd them out. Enough has been said, I think, to establish that that is not Ministers' intention. 
 In our discussion of new section 316, Ministers said that the Bill would not disturb the balance of provision between mainstream and special education. I suspect that Ministers will also say that this particular chunknew section 316Awill not disturb the balance in special education between maintained and non-maintained provision. It is important that we receive assurances on that from the Minister. 
 A briefing from the National Association for Independent and Non-Maintained Special Schools also expresses concern about that. It says: 
``We support the general thrust of the Bill . . . but both the Bill and the revised SEN Code of Practice discriminate against the voluntary and independent sectors in important ways. Nor does the Bill pay sufficient attention to the wishes of the child or of informed opinion acting on behalf of the child.'' 
I make no attempt to quote selectively, or to accept every word of the briefing, which goes on to say that 
``NASS fully supports the drive towards an inclusive society.'' 
It then refers to an inclusive education system with a continuum of provision. That organisation is not arguing that every child with special needs, or every statemented child, should be educated in a special school. It is arguing for a balance of provision, both between special and mainstream education and, within the special education sector, between maintained and non-maintained schools. Two types of balance must be achieved. 
 As the Minister will remember, there was a certain amount of discussion in a previous sitting about the particular concerns of the Royal School for Deaf Children in Margate, which, if not a flagship school, is one of the most appreciated and respected private sector or non-maintained providers of special education. It felt somewhat left out of the operation of regional partnerships. I quoted a section of the letter from that organisation to my hon. Friend the Member for North Thanet (Mr. Gale). It wanted the east of England group to link with the non-maintained sector. It says that the paper that it has received 
``does not provide any indication or evidence of collaborative or consultative and open partnerships.'' 
I do not share all the opinions expressed by the school, but it is important that the Committee should be disabused of certain views. It goes on to say: 
 ``Does this imply that the DfEE has a hidden agenda in supporting a reduction in Non-Maintained provision and that it does not regard collaboration and consultation as essential factors in the decision making process? This would appear to be in contradiction to the DfEE's expressed views about openness, collaboration and consultation and the high quality special provision which is necessary for some pupils/students with low incidence special needs'' 
Therefore, there is a question markI put it no higherover the approach of the non-maintained sector. I emphasise to the Minister that there is no theology in this. This is not an attempt to get the private sector to take over special education, but to protect the position of reputable, often outstanding, non-maintained provision as part of that sector. Almost all of us have had the benefit of visiting schools or other establishments in the non-maintained sector, often supported and organised by specialist organisations. 
The Parliamentary Under-Secretary of State for Education and Employment (Jacqui Smith) indicated assent.

Tim Boswell: The Minister is nodding. I recently paid a stimulating and enjoyable visit to the Sibyl Elgar school, which is run by the National Autistic Society. I also visited the specialist residential college for mature students run by the Royal National Institute for the Blind in Loughborough, which is between the further education college and the university. The college makes outstanding provision to reskill mature people, enabling them to gain access to mainstream employment using new technology. That is exactly the sort of thing that we want to encourage. That school is not maintained, but because the teachers are specialists in the field, they know that they are outstanding at their jobs. Wherever children will benefit from such provision, we want to make absolutely sure that they have access to it.
 That is all we seek from the Minister. There is no hidden agenda to put in place a difficult set of legal hurdles to be overcome before a child can be placed in the non-maintained sector. Most schools in the non-maintained sector are not profit-making organisations. To be a full member of NASS, a school cannot be a profit-making organisation, but must be charitable or run not for profit. Otherwise, an organisation can be only an associate member of NASS. We must ensure that such provision fits in, and that the Bill does not create a shift in the balance, even by accident. 
 I appreciate that these issues are complicated, which is why we seek assurances from the Minister on three matters. First, she must take us through the legal hoops and make sure that the Bill does not fall down on delivering choice. Secondly, we do not want the legislation to be framed in such a way that local authorities, especially those who are under financial pressure from time to time, can wag bits of the statuteperhaps selectively quotedat parents who are not well advised or who do not have an advocate, and say, ``We would love to help, but the law prevents us from doing so.'' Thirdly, we want an assurance that the Minister, the Department and the regional partnerships do not have an agenda that may result in a shift in the balance away from specialist non-maintained provision. 
 I do not want to overstate the case to the Committee, but concerns remain. We look to the Ministeras the non-maintained sector also looks to the Ministerto make absolutely sure that we have got the legislation right and that the Bill will have no unintended consequences that would substantiate our fears.

Jacqui Smith: It is a pleasure to be back here this morning, Mr. O'Brien. Perhaps I can start by allaying the fears of the hon. Member for Daventry (Mr. Boswell) about the legal position. I understand that the amendment is prompted by concerns that the Bill will make it more difficult for local education authorities to fund placements in the non-maintained sector, or prevent them from doing so, but I assure the hon. Gentleman that that is neither the intention nor the legal effect of clause 1.
 Clause 1 strengthens the right to a mainstream place for children with statements if that is what their parents want. I think that the hon. Gentleman already realises that it will not make it harder for parents to have a special school, maintained or non-maintained, named in their child's statement. The clause preserves the parents' ability to object to mainstream provision. If they do, the duty to educate the child in the mainstream is immediately lifted. 
 The amendment seeks to incorporate into clause 1 the wording from section 348 of the Education Act 1996, which allows LEAs to fund non-maintained placements. To that extent, it plays a slightly different role to new section 316, which is about the education of students. The amendment is unnecessary, as new section 316A(3) already ensures that new section 316 will not effect the operation of section 348 of the 1996 Act. 
 The hon. Gentleman highlighted the considerable confusion that has been expressed about the possible effect of new section 316A(1). However, he has already mentioned the intention of that section, which I reiterate. It simply ensures that parents of a child with SEN continue to have the right to educate that child, at their own expense, at an independent or non-maintained school. Without that provision, given the earlier provisions in clause 1, parents of children with SEN but without statements would not be able to choose to send their child with SEN to a non-maintained school at their own expense. 
 We seek to protect that ability in new section 316A(1). If it were prevented, it would make the Bill incompatible with the Human Rights Act 1998. New section 316A(1) ensures that when a parent exercises that right, it is not at the expense of the public purse. However, it does not mean that LEAs are prevented from funding placements. That is the relationship between subsections 316A(1) and 316A(3). 
 Nothing in new section 316A is capable of affecting an LEA's duties in respect of funding non-maintained placements as set out in section 348 of the 1996 Act. Parents will continue to have the right to make representations to have a non-maintained school named in their child's statement. If the LEA agrees, and a non-maintained school is named in a statement, it must fund the placement. If a non-maintained school is not named, parents have a right of appeal to the SEN tribunal. That ensures that, when appropriate, non-maintained schools are named in children's statements. The responsibility for funding remains the same as it is now.

Tim Boswell: The Minister is helpfully setting out the assurances that we seek. She draws an interesting distinction between funding and placing. She spotted that the amendment borrows the provisions of section 348 of the 1996 Act. As I read it, section 348 enables the LEA to fund a place if the school is specified or if it is satisfied that the child's interests require necessary special education provision to be made at a particular non-maintained school. The hon. Lady says that the funding for a statemented child at a specific named school would be protected. I take it that that also applies to the LEA's ability to fund the place if it deems it appropriate. I want to be clear that a statemented child can be sent to X school and that, if an LEA judges that it would be best for the child, it is not ruled out from doing that. It would be useful if the Minister were to clarify that.

Jacqui Smith: If the hon. Gentleman is referring to a child without a statement, the clarification that he seeks is covered by new section 316A(2). It lays out the conditions in which a local education authority could place a child without a statement in a non-maintained special school. They are the equivalent conditions that are laid out in regulation for the placement of a child without a statement in a maintained special school. In those circumstances, there is nothing in the Bill to prevent the local education authority from funding a placement in a non-maintained special school.
 I reassure the hon. Gentleman about the relationship between new sections 316A(3) and 316A(1). The important point is that both provisions are exceptions to new section 316. They both relate to that new section; they do not relate to each other. New section 316A(1) does not have an effect on section 348. New section 316 might have the potential to affect section 348, which is why we have made sure that it does not under new section 316A(3). I accept the hon. Gentleman's point about how the issue could be understood, but I assure members of the Committee that that will be explained clearly in the revised SEN code of practice and the statutory guidance that will back up the new inclusion framework. I hope that he has been reassured about the legal position. 
 The hon. Gentleman said that he wanted reassurance about the Government's position in relation to special school places. I can only reiterate that we recognise and value the important role played by the non-maintained sector. It is not true that anything in the Bill would represent a danger to the special school sector. Clause 1 will not make it harder for parents whose children have statements to gain a special school place. That is why we have always inside and outside the Committee signalled a continuing role for special schools. 
 Clause 1 strengthens the right to a mainstream place for children with statements, but it fully preserves a parent's right to object to mainstream provision. It does not make it harder for parents to gain a place for their statemented child at a special school. We have emphasised that the wishes of parents should be listened to. I have already explained the role that the tribunal will continue to have when a parent had expressed that preference and was unhappy with the response of the local education authority. 
 The hon. Gentleman said that he was worried about our attitude to partnerships, particularly regional partnerships. We have ensured that the non-maintained sector is at the heart of the SEN regional partnerships that we are sponsoring. On Tuesday, I said that the chair of NASS is on the national steering group of the regional partnerships. The hon. Gentleman referred to the case study that was carried out by the east of England partnership that the Royal school highlighted. It studied the appropriate use of the non-maintained sector, as has been the intention with partnerships throughout the whole of their operation in partnership with the voluntary and the non-maintained sector. 
 In developing the partnerships, we asked all the partners to consider what changes may be necessary to improve the special educational needs provision within those areas. Partnerships and developments in special educational needs may well mean change for local education authorities, maintained schools and non-maintained schools. I reassure the hon. Gentleman that we take very seriously the role of the non-maintained sector in educational provision for children with special educational needs, and in the development of the regional partnerships. 
 Our commitment to the non-maintained sector is underlined by the significant funding that we have provided for non-maintained special schools£4.8 million from April, which builds on the £3.4 million that we provided this year. I do not wish to strike a partisan note, but no other Government have provided that level of funding to the non-maintained sector. I was very impressed by activities at New College, an RNIB school in Worcester, when I visited it. That is why, as well as providing the support that I outlined, we have included that school in our beacon school project, to ensure that its good practice is shared. 
 I hope that with those reassurances, the hon. Member for Daventry will feel able to withdraw his amendment.

Tim Boswell: I am grateful to the Minister. She will not always be able to quit while she is ahead, but she has made a genuine effort to respond to our concerns. She and Iand those who advise herwill realise that we are somewhat detached from the process of reasoning in the legal exchanges. I assure her that I have listened carefully and will re-examine the record, but I appear to be sufficed. She is responsible for our exchanges, and we are in classic Pepper v. Hart territory. If something goes wrongfor the sake of all the children, we would not want thatshe will bear the responsibility. We may, however, have succeeded in solving the problem, and I do not suggest that there is any back-door attempt to create substantive change by legal means. We can leave that aside.
 I am grateful for the Minister's assurances on balance. All will be explained, in English, in the guidance to local education authorities and others. That is important because I do not want anything to go wrong when the message goes out to local individual providers or LEAs securing provision. 
 The Minister gave helpful general assurances about balance and about funding for the non-maintained special sector. However, because of the complexity of the matter and of the concerns expressed about regional partnerships, it will be difficult to sell this clausein a genuine, not in a public relations senseto the non-maintained special sector, which was not happy before. If the Minister shares our spirit in trying to secure provision for that sector and if those who work in it are not happy, fences must be mended. We need not do that in Committee, and certainly should not do it in a partisan spirit, but the Minister must persuade those who work in non-maintained schools that the clause will work and is not against their interests. She must persuade them that there is no hidden agendato borrow a phrase that I have already usedto squeeze them out. 
 I am sure that the Minister has approached the matter in good faith. For that reason, despite the fact that Oppositions are required to be professionally cynical, I believe that she has given as reasonable an assurance as she can. Subject to a re-examination of the small print and further representations from the sector, I accept the basis of her legal and educational assurances, and I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

John Hayes: I beg to move amendment No. 6, in page 3, line 11, at end insert
 `(9A) In drawing up guidance the Secretary of State or the National Assembly for Wales, as the case may be, shall
(a) have regard to the need to ensure a balance of local provision to afford to parents a genuine choice between mainstream schools dedicated to special provision and special school settings and between the maintained and non-maintained sectors;
(b) have regard to the need to develop strategies for meeting particular problems as they may arise, as well as the need to cater for the changing needs and educational development of the individual child; and
(c) carry out periodic reviews of the appropriateness of current provision both nationally and at local level for meeting special educational needs.'.
 I am sorry that I was not able to join you at the start of the Committee, Mr. O'Brien. I was refining my research about the important matters that we are about to consider. Those matters concern the mix of provisions for children with special needs, which arose in a previous sitting and require clarification. Conservative Members are anxiousI hope that anxiety is spread across the Committee in the spirit that has permeated our affairs thus farthat there should be as much diversity of provision as possible for children with special educational needs. 
 I shall draw the Committee's attention to the specifics of the amendment that deal with the role of parents. The Warnock report has been regarded as highly significant from the time that we first started taking these matters seriously. During and following the reportin the late 1970s and early 1980sBaroness Warnock made it clear that a pivotal factor in getting special educational needs right was the availability of information about the range of options open to parents and children. Chapter 5 of the report states that information should be available to parents about facilities and supporting services when their child's handicapped condition is disclosed. The report suggests that a handbook is made 
``available for each area giving information about local facilities for children with special needs and their parents, and where such a handbook is not already available it should be produced under the aegis of the appropriate Joint Consultative Committee''. 
Baroness Warnock was essentially saying that giving information to parents is a critical factor in allowing them to exercise their proper choice about the best way forward for their child, once the special need had been properly identified, analysed and found form in a statement. 
 If there is agreement about the role of parentsI believe that there is broad agreementand about the fact that parents should be as well-informed as possible, we must consider the second matter: that of choice. It is fine to provide people with information but, if the information does not allow them to make an effective choice, we are simply going through the motions rather than offering real options. 
 Choice depends on availability, practicality and diversity, and the Committee must address each subject. We have heard from a number of hon. Members, including my hon. Friend the Member for Tewkesbury (Mr. Robertson), about the declining number of special schools in particular parts of the country. Counter claims have also been made. It is worth placing on the record that the Minister gave a written answer to me on 24 November 2000 about special schools closures. She revealed that in January 1999 there were 93,018 pupils in special schools, whereas by January 2000 there were 91,708 such pupils. That is a significant decline of about 1.4 per cent. 
 Over a year, there was a significant decline, which the Minister has made clear was part of a pattern. I do not suggest that special school closures did not happen before 1997. There has been a steady decline in the number of special schools and special school places. That is partly explained by the proper integration of children into mainstream schools, and when that accords with the parents' wishes and is the most appropriate solution for the child, that is entirely right. 
 However, we must measure that figure against the equally startling growth in the number of children identified as having special needs. Just as special school provision has declined, so the number of children with special needs who receive statements has grown. Notwithstanding the good practice surrounding integration, some, perhaps more direct, correlation may have been expected between the growing number of children with special needs and the provision of special school places. 
 Moreover, more children are involved due to medical improvements, greater understanding of particular disability and a more refined approach to analysing need. Therefore, the population of special schools, which is changing because of those factors, could also have been expected to grow. The matter relates to numbers of schools and places. I have no doubt that that has had an impact on choice.

Tom Levitt: The hon. Gentleman is correct in his observation. I believe that other explanations may be involved, too. Over the years, there may have been changes in policy as a result of changes in the control of local authorities. Between 1987 and 1997, 300 special schools closed. Since 1997, the figures show that three opened in 1997, five opened in 1998, 10 opened in 1999 and 13 opened in 2000. An ebb and flow is involved: it is not a one-way street.

John Hayes: The hon. Gentleman is right. There is an ebb and flow, as there was before 1997. The figures before 1997 show that schools were opening as well as closing. The traffic is not one way and never has been. The world did not suddenly improve in 1997 when we started building new special schools.

Tim Boswell: Does my hon. Friend agree that if the figures are disaggregated, those for developments in particular local education authorities may cause anxiety? In some areas, many more schools may be shutting than opening, or a particular element of provision, whether mainstream or special, may be faltering either by accident or as a matter of overt policy.

John Hayes: Indeed, and as the hon. Member for High Peak said, that policy may change. Local authorities have adopted different strategies in dealing with special educational needs. Some have taken a view similar to my own and that of members from both sides of the Committee that it is important to have diverse provision in order to facilitate choice. Others have taken a narrower view, as is well revealed by a glance at the distribution of special schools. We should not become too preoccupied with the total number of places or even the total number of schools. We need to examine the distribution of schools.
Mr. Levitt rose

John Hayes: I am about to do so in some detail and at some length, but I happily give way to the hon. Gentleman first.

Tom Levitt: In the past, children may have received special education because of a severe physical disability that could not have been catered for in a mainstream school. However, as a physical disability does not equate to a learning disability, perhaps those children are now rightly being educated in mainstream schools because there was never a justification for their receiving special education.

John Hayes: I agree. I have stated that such children can be successfully integrated, especially those whose disability is readily identifiable, static and straightforwardalthough I hesitate to use that word, as the notion that any disability can be straightforward is open to challenge.
 I also agree that it has been easier to integrate children with the special needs to which my hon. Friend referred. The typical cohort for special schools has changed in the past 20 years: a different range of children now attend special schools, partly because of factors to which the hon. Member for High Peak referred. Before the Education Act 1981 and Warnock, a crude view was prevalent on such matters. 
 I want to remind hon. Members of some comments made during the debate on the Education Bill in 1981 about parental wishes and diversity of provision. The Secretary of State said that the Government believed that 
``parental wishes should be respected wherever possible. By no means all parents with handicapped children feel that their children's interests are necessarily best served by education in an ordinary school.'' 
In the past few days, I have reread that debate and the Warnock report, and have been alarmed by some of the language employed in them, although I am sure that no malice was intended. However, the way in which people with special needs and disabilities are discussed has moved forward. 
 In 1981, the Secretary of State also said that 
``our aim is not simply integration for its own sake. It is the provision of appropriate education for individuals.''[Official Report, 12 February 1981; Vol. 998, c. 30.] 
My party believes that the specific educational needs of the child should be paramount. My rereading of the 1981 debate and Warnock has made it clear to me that, at that time and since then, everyone who has taken a serious interest in the matter has advocated offering a range of provision that facilitates choice. Some children will receive a better education in special schools; others should be integrated into mainstream education. 
 It might be possible to accept the decline in the number of special schools on the ground that that is an inevitable and necessary part of the process of integration into the mainstreamalthough I am sure that my hon. Friend the Member for Tewkesbury does not share that view. However, the uneven distribution of special schools is not acceptable, because that disadvantages those parents of children with special educational needs who believe that their child would be better educated in a special school. 
 It is worth glancing at some of the issues associated with the distribution or population of special schools. Cheshire, which has 382 schools in all, has 17 special schools, two of which are non-maintained and 15 maintained. However, Liverpool has 234 schools in total and 23 special schools. In the Yorkshire and Humberside region, Kirklees has 209 schools in total and nine special schools, whereas Sheffield has 205 schools in total and 14 special schools. 
 In my county, LincolnshireGod's own countywhere the liberal bourgeoisie are, thank God, at a minimum, there are 401 schools in total, which are widely spread, and 19 special schools. In the neighbouring county of Nottinghamshire, where I lived my whole adult life before moving to Lincolnshire, there are just 12 special schools, despite the fact that there are 411 schools in total. From my knowledge of Nottinghamshire LEA, I can tell the Committee that there are fewer special schools in Nottinghamshire precisely for the reason identified by the hon. Member for High Peak. Ten years ago, Nottinghamshire county council adopted a policy that was, ironically, known as ``children first''. Essentially, it was a policy of closing special schools, for which a Labour local authority was responsible. I hope that you will forgive me, Mr. O'Brien, for making a partisan point, such as the Minister admitted to making earlier.

Tim Boswell: If that policy was described as ``children first'', my hon. Friend begins to put me off my enthusiasm for giving the child paramount importance. Was there not also a correlation with the fact that Nottinghamshire's LEA was extremely reluctant and tardy in granting statements to children? The problem was not just a matter of provision, but was related to the fact that the authority tried to keep statements to a minimum.

John Hayes: I am reticent about criticising former colleagues and friends, some of whom are still Labour members of that authority with whom I keep in close touch. When I was selected for my parliamentary seat, which was regarded as a safe seatalthough I do not believe in such a thing, which is why I work like an evangelistthe first person to ring to congratulate me was a Labour county councillor, a gentleman whom I shall not name but who later became chairman of the county council. I therefore do not want to be too critical of my former colleagues and friends in Nottingham. That said, I have a long record of involvement in this matter. Even as shadow chairman of education in Nottinghamshire, I expressed scepticism about the policy, which, through the closure of special schools, was resulting in limited choice for parents. The figures speak for themselves.

Tom Levitt: The hon. Gentleman is criticising a Labour local authority for having closed special schools 10 years ago. Am I not right in thinking that school closures at that time would have had to be approved by the Secretary of State, and were, therefore, approved by a Tory Secretary of State?

John Hayes: I should have briefed the hon. Gentleman in advance so that he could have fed me that line. I was involved in saving Foxwood school, in Nottinghamshire, which the Labour local authority wanted to close. A benevolent Conservative Secretary of State intervened. The school became grant-maintained, so I could go one step further and celebrate that

Mr Bill O'Brien: Order. I draw the hon. Gentleman's attention to the amendment. It would be a pleasure for us all if he were to refer to it.

John Hayes: I was again encouraged to stray from the straight and narrow by the hon. Member for High Peak.
 I was making a point about the part of the amendment that deals with the issue of choice. My casewhich I believe that I made with some success, although the Committee must be the best judge of thatis that special school provision is unevenly distributed. In some parts of the country it is very uneven. Authorities with similar numbers of schools and school populations have widely different numbers of special schools. In authorities with few schools, the parental choice identified in the amendment as important is being limited. 
 I end my survey of the countrybecause we do not want it to become a travelogue, do we, Mr. O'Brien?with a brief consideration of the situation in London. I pick as an example, for objective reasons alone, the region of Barking and Dagenham, where there is only one special school out of a total of 58 schools. In Redbridge, however, there are five special schools out of 89. Although the problems and practical issues are different in conurbations because people travel across boundaries, that variation in number is indicative of the differing views taken by local authorities. Those views seem to cut across the objectives set out by Baroness Warnock and the 1981 Act, and the broad intentions embodied in the Disability Discrimination Act 1995, which pinpointed discrimination against people with particular needs. They also contradict what we have heard about the spirit behind this Bill from its authors and proponents, who reassured me that they understood the need for diversity and choice and for parental involvement. 
 Our case in the first part of the amendment is that parental choice is dependent on not only information, which everyone agrees should be available to parents, but proper availability of provision. The simple fact of the matter is that it would be difficult for parents in Nottinghamshire to find a place for their child in a special school, even if they wanted one because they thought that it was the best thing for their child, and even if the child's statement suggested that it was the best option. The policy that has prevented schools from being retained also prevents parents from exercising a proper choice. 
 Under paragraph (b) of the amendment, the Secretary of State or the National Assembly for Wales should have regard to not only 
``the need to ensure a balance of local provision'' 
so that there is an effective choice but 
``the need to develop strategies for meeting particular problems''. 
The situation is dynamic and the changing nature of the provision, to which earlier contributions have already alluded, requires some view to be taken of the distribution of the population and of special schools. 
 The needs of individual children also change. During a previous sitting, I said that we should not assume that children go either into the mainstream or into special education and that there is no movement between the two. I spoke at some length on the nature of dynamic special needs and the flexibility that those dynamic needs require if the child is to receive the most appropriate education. There is a real need for children to move in and out of mainstream provision. A view should be taken about the changing nature of not just provision but demandboth for individual children and for children as a whole. 
 Paragraph (c) of our amendment provides for 
``periodic reviews of the appropriateness of current provision both nationally and at local level for meeting special educational needs.'' 
We contend that the Secretary of State should have regard for a balance of provision. That may be between maintained and non-maintained schools; I have already cited distribution figures that show a mix between the two. It is perfectly reasonable to consider the fact that there are a large number of non-maintained special schools in an area, even if there are few maintained schools. If those non-maintained schools are providing a proper function by offering a widely available choice, we can assume that a balance has been struck. As my hon. Friend the Member for Daventry made clear, we do not preclude provision from a variety of sources, but the Secretary of State should have regard to that balance. The Secretary of State should also take account of the dynamic nature of the needs of particular children and the relevant changing policy issues, and should carry out reviews. 
 That is all uncontroversial. I find it hard to believe that the Minister will not grasp this opportunity with both hands. The amendment is not destructive; it is highly constructive. It does not fly in the face or go against the spirit of the Bill; it would not disadvantage or prevent anyone who wants to gain a place in a mainstream school from being included and integrated if they believe that to be right, if that is in their interests and if that is consistent with their statement. The amendment supports diversity and reassures those who feel that there is a hidden agenda to close special schoolsI do not necessarily subscribe to that view, but it has been broadcast. By so doing, it adds to and improves the Bill.

Laurence Robertson: Given the full speech that my hon. Friend has just made, in which he covered many different areas, I do not intend to detain the Committee for long, especially as today is the 43rd anniversary of my birth and I know that Committee members will want to buy me a drink at lunchtimenot all of them, hopefully, otherwise I shall not be able to speak this afternoon. On that basis, they probably all will.
 I want to underline some of the points made by my hon. Friend. The two important words in the amendment are ``balance'' and ``local''. As my hon. Friend has rightly pointed out, national provision is not necessarily equally reflected locally. To draw an analogy, there are various guidance notes about planning, but there is provision that guidance should be interpreted locallyand rightly so. Local planning guidance varies because of local difficulties. That is also true of education. National policies are not always equally interpreted across the country. I do not want to test your patience, Mr O'Brien, or bore the Committee by talking too much about Gloucestershire again. I have made my point about Gloucestershire in Committee and in the House, so I shall not go into that, other than to say that it is a good example of what my hon. Friend described. If a local authority wants to unbalance provision in its area either because it is misguided or it has bad intentions, parents have no choice. Choice in education will not be preserved if there are no schools to choose between. 
 During our second sitting, I asked the Minister how we ensure special school provision in a given area. To turn the question around, if we acceptI do not entirely go along with this interpretationthat there is no desire to close special schools, how do we ensure that special schools remain? The Minister replied that the Bill neither guarantees special school provision 
``nor makes it less likely. The local education authority must ensure adequate provision for special educational needs''.[Official Report, Standing Committee B, 27 March 2001; c. 55.] 
I accept that that is the Government's guidanceand the Committee'sbut how are we to ensure that it is put into practice? The amendment, and in particular new paragraph (a), reinforces that aim. 
 As my hon. Friend said, even where there are special schools, it can be difficult to obtain a place, especially in the current climate of scrutiny of special educational needs provision, with a presumption in favour of inclusion. In Gloucestershire, several parents pay quite a lot of money to transport their children from one end of what is quite a big county to the other, simply to obtain the special education that they feel their children need. 
 Information to enable parents to assess which school they would prefer for their children is another area of difficulty, which my hon. Friend also touched on. I mentioned on Second Reading a young man called Brian Beard, an 11-year-old whose parents felt that they had not been given full information or any choice about where their son should attend school. He went to a mainstream school, where he could not cope. He was temporarily taken out of school, with a view to trying for a place in a special school. The school understood that to be a withdrawal and has since said that it does not expect him to return. The local education authority has not provided for him to attend a special school. As a result, since Septemberand it is now Marchthat young man has had no education. Hon. Members would all accept that that family's predicament is not acceptable. 
 What has happened is due partly to the shrinking number of special school places, but also to the complexity of the effort to find the right school for a pupil. That needs to be simplified. If I had drafted the amendment, I might have made it even stronger, but I hope that the amendment will contribute to simplification. 
 My hon. Friend the Member for Guildford (Mr. St. Aubyn), who is not in his place at present, pointed out that some local education authorities, whether for reasons of resources or of philosophy, do not provide adequate special education, and therefore do not do their duty in that respect. As I pointed out in an intervention, the notes to the Bill suggest that 20 per cent. of pupils have special educational needs at some stage in their school careers, which is a serious matter. The Committee should do what it can to ensure that local education authorities or, indeed, the National Assembly for Wales, have a responsibility to provide a balance of schools to suit parents' requirements for their children. 
 I do not want to say more, other than to emphasise, at the risk of trying the Committee's patience, that what is fine in theory is not necessarily so on the ground. Experience from Gloucestershire drives me to continue to tell the Committee and the House that in some areasGloucestershire is not the only onethe situation is not as it should be.

Tim Boswell: My remarks are purely supplementary to those of my hon. Friend the Member for South Holland and The Deepings (Mr. Hayes). I do not need to rehearse his arguments, or those of my hon. Friend the Member for Tewkesbury, as they made them with considerable eloquence.
 I want to touch on a couple of specific issues, the first of which is about the wording at the start of the amendment. It states that, in drawing up guidance to LEAs or other providers, 
``the Secretary of State or the National Assembly for Wales, as the case may be, shall'', 
and it then itemises their duties. In your wisdom, Mr. O'Brien, you were not able to select an amendmentI do not seek to subvert that decisionthat we tabled specifically on cross-border issues resulting from the responsibilities of the Secretary of State in England and the National Assembly in Wales. The principality is represented on the Committee. 
 One or two of us are veterans of debates on what is now the Learning and Skills Act 2000. For what might loosely be termed parliamentary exigencies, my right hon. Friend the Member for Cities of London and Westminster (Mr. Brooke) and I had to deal with the Welsh clauses of that legislation. My wife is a Welsh teacher, and my hon. Friend's redoubtable Welsh mother, Baroness Brooke of Ystradfellte, was alive at the time, but I am sad to say is not now. It is important that we bear cross-border issues in mind, as they are relevant for two reasons.

Mr Bill O'Brien: Order. Amendment No. 5 has not been called, so I ask the hon. Gentleman to return to the amendment that we are discussing.

Tim Boswell: That is my intention, Mr. O'Brien. We are concerned with the guidance that the National Assembly or the Secretary of State might give. I wanted to put down a marker by saying that schools close to the Anglo-Welsh border may draw pupils from either side of it. In such cases, the two authorities should get their act together and give broadly consistent advice and guidance. That is entirely relevant. They need to consider local provision and the nature of guidance.
 I shall say no more than that. We must respect the autonomy of the National Assembly for Wales. However, it would be unfortunate if a certain provider found itself with wildly different sets of guidance from either side of Offa's dyke, or if the Bill somehow miscarried because the two authorities did not operate together. I have a certain sensitivity on this matter as I live only a few hundred yards from a county and LEA boundary. Much of my time in my constituency is spent brokering out-of-county provision or considering cross-border problems, so I am sensitive to such problems between England and Wales. I do not want to continue on that issue, but it is important that the Committee should think about it a little. 
 My second point regards the amendment. Again, I assure the Committee that I do not intend to rehearse arguments that have been made extremely well. Even if others do not like our wording, I think that there is consensus in the Committee. We want balance and genuine choice.

Evan Harris: I would be grateful for the hon. Gentleman's guidance on the meaning of the words ``genuine choice''. Does he think that that choice is best reflected when parents and their children choose schools, or when schools choose the children that they admit?

Tim Boswell: I think that I can understand the drift of what the hon. Gentleman is trying to say to me.

John Hayes: Barely.

Tim Boswell: No, I can understand precisely. My hon. Friend is misguided on that. I think that the hon. Gentleman wants to open a debate about free schools, which may be of some concern, but is perhaps not relevant here.
 I would have thought that what is required is a mutuality, in which the school was anxious to take the pupil and the parents, on behalf of the child, were anxious for the school to take the pupil. That is the normal relationship in the non-maintained sector, though not necessarily in terms of special education. Much of this is determined by whether the money follows the child. We need more debate. We should consider how resources can be delivered in a transparent way to institutions. In that sense, I find the hon. Gentleman's intervention helpful. 
 We want an open relationship, more arm's-length in one sense, but more consensual in another, in which parents and children are not steered to a particular type of school because that is the only provision available. Nor should schools provide just to make up their numbers, or according to whatever funding package has been provided. The hon. Member for Oxford, West and Abingdon (Dr. Harris) implied that, bearing in mind that they would remain maintained schools in the public sector, schools would need a clear, consistent and justifiable admissions policy, even if the LEA did not set those policies. 
 The two requirements are not incompatible. However, it is important that the principles of parental choice and of schools being able to specialise and set their own admissions policy are seen as consistent.

Evan Harris: The amendment refers to affording parents a genuine choice, not to having a balance of choice between schools and parents. It seems to me, and I want to check that this is the hon. Gentleman's understanding, that if a school does not select a child, that limits choice for parents. The wording of the amendment is incompatible with selection.

Tim Boswell: I explained at some length that I saw the matter as being one of mutuality. If a school was unable to accept a child because it was felt that that child would not fit in, it would be the continuing duty of the local authority to secure provision elsewhere, be it in the maintained, non-maintained, special or mainstream sector. That duty continues and should not be taken away from the democratic local authority. The hon. Gentleman seeks to make a distinction, perhaps in order to conduct a wider debate.
 I did not intend to spend long answering the hon. Gentleman's intervention. He is, in effect, resisting the right of any school to reject any child, whether through selection by aptitude or for some other reason. If that right creates a difficulty for Conservative policy, it also creates difficulties for the Government's policy on specialist technology colleges. The hon. Gentleman is nodding at that. Once one begins to consider differentiation, almost by definition one considers a measure of selectivity. That leaves aside the wider issue of whether one supports comprehensive education, and I am mindful of an interesting television programme on exactly that point that some of us may have watched recently. We may no longer select through the front door. It has been said that we no longer select by ability; we have replaced that with selection by mortgage. The hon. Gentleman tempts us into an extraordinarily wide debate, but I shall not follow him. 
 I return to the substance of the amendment. The Minister may wish to comment on the interaction between what is proposed and the general duties in the Education Act 1996. We could have a fruitful discussion about that. One delight of considering a Bill that alludes so heavily to earlier and, if I may say so, good Conservative legislation, is that one has to refresh one's memory from source. 
 I draw the Committee's attention section 11 of the 1996 Act, which prescribes that the Secretary of State 
``shall . . . exercise his powers . . . with a view to (among other things) improving standards, encouraging diversity and increasing opportunities for choice.'' 
Our words then were diversity and choice. In the new Green Paper, the Government call it choice and diversity. In whatever they come, those words are at the heart of our amendment. People should be able to make informed decisions, and they should have a choice. I emphasise what I said on Second Reading without rehearsing it now. 
 I invite the Minister to consider sections 500 and 501 of the 1996 Act. I have a feeling at the back of my mind that there is an even more general section, but those sections allow the Secretary of State to review the provision of educationin section 500, if provision is seen as excessive and needs to be rationalised; and in section 501, if a case can be made for new or additional provision. I wish to draw the Minister on how those various sections might interact, and I hope that she will respond positively. 
 I close by mentioning two matters of genuine concern. Although the 1996 Act has been place for a number of years, my hon. Friend the Member for Tewkesbury has told us that certain local authorities honour it more in the breach than the observance. Whatever the law says, they are not too keen on putting its provisions into practice, and parents may have to go though the difficult and rather objectionable process of going to law to obtain their legal rights. It is a pity that they should have to do so in relation to a public authority. 
 The second problem is the extent to which local authorities are reviewing their education provision. I say that neutrally; I do not mean that they are necessarily in pursuit of a hidden agenda to wipe out special schools, although my hon. Friend the Member for Tewkesbury has eloquently rehearsed his concerns to the Committee. A local study is being undertaken in Northamptonshire. I do not know what it will come up with, but it is not a bad idea to look. We do not suggest that existing provision is perfect for all time, in all places and for all children. It should not be set in stone, but it should not be seen as an agenda that drives towards either end of the theological spectrum. We are interested in a breadth of provision. 
 Concern was expressed earlier that the Government's original Green Paper had set off one or two lines of thought, inquiry and review; but we have rowed back a lot from that, because the role of special schools in providing for special educational needs is now better understood in all quarters. However, we must ensure that such reviews are not driven by particular bits of theology, and that they come up with broad and balanced provisions. The amendment was meant to ensure that, and my hon. Friend the Member for South Holland and The Deepings argued the case with much eloquence.

Jacqui Smith: I am sure that we all wish the hon. Member for Tewkesbury a happy birthday. I am concerned that his Whip would not give him the day off.
 The amendment would define what the Secretary of State and the National Assembly for Wales should have in mind when drafting the new statutory guidance on inclusion. In explaining why we resist the amendment, it will be useful if I say what we envisage the guidance covering. It will back up the new inclusion framework and provide practical advice to help schools and LEAs in partnership with parents to determine whether a mainstream place is right. Clearly, we believe that parents' preference for a mainstream place for their child should be refused only when the school or local education authority can clearly demonstrate that the child's inclusion would be incompatible with the efficient education of other children. 
 We envisage, in particular, that the guidance will cover how new section 316 and schedule 27 operate and interact with other legislation, including section 348, which governs publicly funded placements in non-maintained schools. It will explore the steps that maintained schools and local education authorities can consider taking to ensure that a child's inclusion is not incompatible with the efficient education of other children. It can consider the type of children for whom a mainstream place may not be appropriate because of their effect on the education of other children, underlining that, when a mainstream place is not appropriate or when parents want an alternative placement, consideration should be given to the range of appropriate alternative provisions. It should set out clearly the safeguards that protect the interests of individual children with SEN and all pupils. In explaining the guidance, I hope that I have partly exemplified why we do not consider the amendment appropriate. 
 In response to the point made by the hon. Member for Daventry, the National Assembly for Wales and the Department are working closely together on the guidance to ensure that, while recognising the different legal aspects in Wales and England, it provides consistency, especially for schools.

Tim Boswell: Will the Minister make it clear to the Committee whether the code will be owned jointly or whether there will be potential for disparity?

Jacqui Smith: I am not clear about what matter the hon. Gentleman is referring to.

Tim Boswell: The revised code.

Jacqui Smith: We are working on the code with the National Assembly. I shall clarify matters later if the hon. Gentleman is still not clear.
 The amendment refers to the need to ensure a balance of provision to afford parents a genuine choice, the need to develop strategies to meet children's needs and to monitor the appropriateness of SEN provision. That is not what the guidance on inclusion is designed to cover. Such issues are dealt with adequately elsewhere. The hon. Member for South Holland and The Deepings rightly emphasised the important role of parents in the education of children with special educational needs and more widely in the education system. It is important to recognise that more parents are choosing mainstream placements. 
 Although we believe that the special school sector is safe, it is worth while recognising, as my hon. Friend the Member for High Peak did, that parental confidence in the system's ability to provide for pupils special educational needs in a mainstream setting is growing. That is why the percentage of pupils with statements who are placed in mainstream schools has grown steadily growing since 1996. There is a modest trend towards inclusion in new statements. In 1996, some 66 per cent. of new statements resulted in a mainstream placement. In 2000, that had increased to 74 per cent. That reflects parental confidence in the ability of mainstream schools to be able to deal excellently, in many cases, with the range of needs and disabilities that pupils may bring to their education in those schools.

John Hayes: It may indeed reflect that growing confidence or it may reflect the shortage of special school places and the decline in the numbers of those places. Those statistics could be used to justify either of those cases, but I suspect that there is a mix between the two. Does the Minister agree?

Jacqui Smith: No, I do not believe that the trend results from a shortage of special school places. In fact, we know from independent reports and surveys such as the National Autistic Society's study entitled ``Inclusion and autismis it working?'', which was published last year, that parental confidence in inclusion is growing. The study found that three quarters of the parents that they surveyed were satisfied with the education that their children received. Some 80 per cent. of those with children in mainstream schools said that their child had been better served by being in a mainstream school. Professor Sue Buckley's report on the education of individuals with Down's syndrome also highlighted the many benefits that inclusion can offer and the excellent work being done in many schools.
 It has been suggested that the special school sector is somehow under attack. I reiterate our important figures about the proportion of children placed in special schools. In 1991, 1.3 per cent. of children were in special schools and that that figure fell to 1.2 per cent. by 1995. It has since remained constant. We do not believe that that will change radically because of the Bill.

Tim Boswell: Not necessarily now, but perhaps at a later stage, will the Minister say, while breaking down the figures that she has already given, what proportion of children educated in special schools are educated in the maintained or non-maintained sector? That is germane to the amendment and might be of general interest.

Jacqui Smith: I undertake to write to the hon. Gentleman on that subject, although I thought that the argument related more to the need for special school provision as opposed to mainstream provision. The clause relates to that relationship, strengthening the right of parents to get a place for their child in a mainstream school.
 The hon. Member for South Holland and The Deepings made much of distribution and location of special schools. The location of special schools is often the result of history, as with all schools. Some LEAs will always have a good record of supporting pupils in mainstream schools, while others are still developing. One size does not fit all. Some excellent special schools take children from all over the country, so their physical location does not necessarily represent an ability among local children to access special education. 
 The hon. Gentleman rightly pointed out a distinction in the number of special schools in different parts of the country. I note that Gloucestershire, for example, has the highest number of special schools in the south-west area. 
 The special educational needs regional partnerships aim to help redress variations in the quality and the type of response that pupils receive. I accept that we should ensure that all children, in whichever local education authority area, should receive the best possible opportunities for their education, whether in a mainstream or special school. That is clearly an important role for the SEN regional partnerships established by this Government, and a key theme of our SEN programme of action. 
 On the concern raised by the hon. Member for Tewkesbury and others about LEA provision, it is important to reiterate the need to ensure a balance of provision for parents. Section 14 of the 1996 Act requires LEAs to secure sufficient schools for pupils. In doing so, they must have particular regard for the need to secure special educational provision. The Act ensures that provision is available to meet pupils' needs. Each year, each LEA must submit a school organisation plan to the local school organisation committee for approval, setting out how sufficient provision for pupils in its area will be secured. It must include the provision proposed for children with special educational needs. In doing that, LEAs must listen to what parents want.

Tim Boswell: For the avoidance of any doubt, my understanding is that the 1996 Act is neutral on whether the provision for special educational needs is in special or mainstream schools.

Jacqui Smith: The hon. Member for Tewkesbury appeared to be suggesting that there was nothing to ensure that children in his area received the high-quality education that we seek to give children with special educational needs. Section 14 ensures that LEAs offer that provision. There may be arguments at a local level about the balance of provision between special and mainstream schools, but there is protection in law to ensure sufficient education for children with special educational needs.

Laurence Robertson: I am concerned that if special schools are not retained, there will be no choice for parents. As my hon. Friend the Member for Daventry pointed out, section 14(6) of the 1996 Act provides for securing special educational provision, not schools. There is a difference.

Jacqui Smith: The key point is that we all aim to achieve the best educational provision for our children. Section 14 is neutral on special and mainstream provision, but the educational provision, whether in a special or mainstream school, must be suitablewe would aspire to excellentfor all our pupils. LEAs and others making proposals are encouraged to have regard to the advice to school organisation committees, which underlines the factors to be taken into account: whether the proposals enable pupils' special educational needs to be met and will improve educational standards in the area, how they increase inclusion, and whether there is a need for a particular type of special educational needs provision in the area. As I made clear on Tuesday, school organisation committees will include representatives from special schools in the area. I am sure that those representatives will be clear, as will the others, about the need to maintain good provision.
 The second paragraph of the amendment refers to ensuring flexibility in the system to respond to the particular needs of children as they arise. I assure hon. Members that ensuring that strategies are developed to meet the needs of children as they arise and change is part of the statementing process. The system for evaluating and providing for SENs is set out in the SEN code of practice. Its aim is to ensure that the special educational provision called for by pupils' needs is made. Some hon. Members have spoken about the need for flexibility between special and mainstream provision for individual children, and I agree with that. We believe that there is sufficient flexibility to allow children to spend time in special schools as well as in mainstream schools. Many children with special educational needs are supported by dual placements, which will continue to be available. As I spelled out on Tuesday, we are encouraging all special and mainstream schools to work together, support each other and better meet the requirements of children with special educational needs.

Tim Boswell: As the Minister has just referred to dual placements, will she brief members of the Committee, if the figures are readily availableas she briefed us helpfully on another point that I madeon the number of statemented pupils who have such dual placement arrangements?

Jacqui Smith: I undertake to write to the hon. Gentleman and other Committee members with the information available on that issue.
 The need to monitor the appropriateness of SEN provision is covered by the fact that Ofsted already monitors the quality of provision via school and LEA inspections. Furthermore, Her Majesty's chief inspector of schools will monitor the impact of the new inclusion framework. Given that the three issuesensuring a balance of provision to afford parents a genuine choice, developing strategies to meet children's needs and monitoring the appropriateness of SEN provisionare more than adequately covered and protected in other areas, I hope that the amendment will be withdrawn.

John Hayes: As ever, the Minister presents her case with eloquence and charm. However, I am a hard man to charm and I have several concerns.
 First, her defence based on the 1996 Actsection 14 of which, as my hon. Friend the Member for Daventry rightly pointed out, is neutral on special schools and mainstream provisionis hollow. We all take the view that it is important that we maintain high quality across the whole education service, and we believe that it is vital that, wherever children are educated, they are educated to the best possible standards. However, that is hardly an argument against an amendment that seeks a balance of provision between the special school sector and the mainstream. The first of her defences is therefore unpersuasive. 
 Secondly, the Minister accepts that flexibility is necessary and vital, and I am minded of the words of Baroness Warnock in chapter 8 of her report, which stated: 
 ``The facilities and expertise should be more widely available to provide intensive specialised help on a short-term basis and sometimes at short notice''. 
That is the flexibility to which I referred earlier. The hon. Lady said that she supports it and rightly drew attention to it. However, that ability for children to move between sectors, facilitated by a dual statement, is supported only from the parents' and the child's point of view on the basis of availability. There are real issues in practical terms about availability, unless we ensure that a balance is maintained. 
 I am not only worried about the existing distribution, to which I drew attention earlier, but concerned about what may change as a result of the Bill. Members on both sides of the Committee have reminded us of the destructive effect of the Green Paperthat sad incident in the life of the Government which caused so much distress throughout the country. Earlier I reflected the words of the hon. Member for Colne Valley (Kali Mountford), who is not in Committee at the moment, when I said that it was used by some local authorities as a green light for the closure of special schools. If that was a green light, heaven knows what would happen if we were not to maintain the importance of balance in the Bill by supporting the amendment. It is not just the existing distribution that is the worry, but the potential distribution as local authorities respond in various ways to another green light in relation to the provision of special needs education.

Tim Boswell: Is not the crucial issue the point at which a Secretary of State or, if necessary, a court would be able to say that the local authority had gone outwith the bounds of the statute and no longer offered that choice of provision? Is not the important thing the fact that we are trying to tie that down, so that the choice is within an acceptable range, with variation, and it is not possible to move to one end of the spectrum or the other with impunity?

John Hayes: When the 1996 and 1981 Acts were discussed, emphasis was placed on the need for safeguards relating to the nature of provision and the balance of provision between special and mainstream schools. It is precisely that spirit of providing a safeguard, or longstop, that lies at the heart of our desire to press the amendment to a Division. I do so not in the interests of defending a particular sidewhich my hon. Friend describes as a theologybut because I believe that it is vital to reassure all those who take a legitimate interest in the matter that the spread of provision and the flexibility that it provides, and the choice that that facilitates, will be preserved, and that the Secretary of State will be mindful of its preservation and will intervene if necessary if he feels that that balance is at risk.
 Question put, That the amendment be made:
The Committee divided: Ayes 4, Noes 12.

Question accordingly negatived. 
 Clause 1 ordered to stand part of the Bill.

Clause 2 - Advice and information for parents

Tim Boswell: I beg to move amendment No. 7, in page 3, line 33, after `authority', insert
`having regard to the importance of securing a fair and informed choice of school,'.
 We had a good debate on clause 1. Many of the amendments that follow are designed to obtain elucidation about safeguards and the operation in practice of what I have no problem in admitting is a reasonable architecture for the Bill. We are not trying to subvert the Bill or niggle at it; nor are we being awkward on purpose. We are merely considering aspects of how it may operate in practice, testing the Minister's intentions and expressing our anxiety about what has happened in the past. 
 Clause 2 relates to advice and information for parents. We would all agree that that is an essential component of their ability to make an informed set of parental choices. If they do not have that advice and information, they will not be able to make those choices. We are not dealing with experts. They are experts in the defence of the interests of their children and are deeply committed to their childrenat least, we hope that they are, and normally they will bebut the circumstances are often unusual and, sadly, unanticipated by them. Such circumstances may be distressing and have wider family implications. Therefore, the situation is sensitive. As many of us know, it may work immensely well within a family, and between a family and the education provider, but in other cases will be difficult and fraught. 
 It is essential that the local education authority that is offering provision should do so in a straightforward, legitimate and open manner. I have no objection to the Government providing that there should be advice and information. Our sole reservation, and the purpose for tabling the amendment, is to ensure that the advice and information is sufficiently objective and full so as to secure informed parental choice. 
 I avert to another area, of which I have longer and more continuing experience. The Minister will know what I am talking about in practice. When young people reach school-leaving ageirrespective of whether they have special educational needsand are advised and guided about their choice of future educational establishment or career path, there is a potential clash of interests. For example, some maintained schools will attempt to keep pupils in the sixth form, even if that is not in the pupils' best interests. That is highly advantageous for the school because the packet of funding is introduced at the average, rather than at the margin. I know personally of cases in which, effectively, that has happened. 
 One may examine the matter in terms of further education colleges. Although such colleges have a statutory opportunity for their material to be offered in schools, sometimes that is more honoured in the breach than the observance. There is a worry that must lie behind any concerns that we have with the clauses to be considered: whatever is in the comprehensive 1996 Act, with its many provisions on SEN, the practice is otherwise. We regret that, and I think that the Minister does also. 
 As constituency Members of Parliament, we frequently have to fight local education authorities, and tell them that they are not doing as well as they should. That can be done in two ways. One can attribute many malicious or other motives to them or, more realistically in nearly all cases, consider that the offices of local education authorities and education committees are under severe pressure for resources, desperate to make money go round to the best effect, and are trying to avoid commitments that they feel would unbalance their provision. 
 I think that I have already mentioned my personal feeling that, eventually, mainstream parents, who have no contact with SEN, will bring a case under the Human Rights Act 1998 claiming that a LEA has organised its affairs to give too much to SEN and not enough to children without SEN. The parents may win such a case. However, whatever we do, the LEA must operate within the framework of its resources. A further matter may be that, even if there is no intention specifically to rig the course to statements or SEN provisions, the LEA may not be good enough at its job, or good enough to get the material out. 
 We have tabled the amendment with such underlying fears in mind. The amendment is probing because the Minister may want to say how the matter will be secured by guidance or by the code, so that local authorities do better than some have done previously. The purpose of the amendment is to state that the authority should give regard to the importance of securing a fair and informed choice of school. 
 The duty that is set out in the proposed new section would require local authorities to provide advice and to 
```have regard to any guidance'''. 
The Committee discussed the guidance in an earlier debate. The proposed new section would also require the local authority to 
```take such steps as they consider appropriate for making the services provided under subsection (1) known to 
 (a) the parents of children in their area, 
 (b) the head teachers and proprietors of schools in their area, and 
 (c) such other persons as they consider appropriate.''' 
 Those requirements might seem satisfactory, but an authority that has a hidden agenda, or is dysfunctional, could not be obliged proactively to inform parents of them. Such an authority could claim that it had discharged that duty if half a dozen scruffy leaflets were placed in the waiting room of the special educational needs officer with whom a parent was discussing his or her case. I want that matter to be clearly addressed in the guidance. The themes that should be emphasised are consensus and partnership, and they should also be key considerations with regard to the following clause. 
 I want LEAs to act in good faith. They should take parents into their confidence and offer them genuine choices, rather than blind them with science. An LEA should inform parents of their options concerning their children's education and advise them about key considerations, such as the time it would take their children to travel to a certain school, and the kinds of provision that it offers. In short, local authorities should level with parents. 
 I am sure that the Committee will not disagree with that. However, the Minister must give an assurance that the new system will ensure that parents of children who have special educational needs are provided with informed choices about their children's education more frequently and consistently than in the past. Those parents and their children deserve that.

Jacqui Smith: As the hon. Gentleman pointed out, the amendment seeks to ensure that LEAs publicise their parent partnership services in ways that take account of the importance of securing a fair and informed choice of school for children with special educational needs. However, I hope to convince hon. Members that the amendment is unnecessary.
 The Government believe that such partnerships, set up on a statutory basis, should provide parents with information that allows them to make a fair and informed choice about the school that their child will attend. However, parent partnership services will also be expected to provide information and advice about a wide range of other special educational needs matters. 
 Parents must be informed about the wide range of options available to them, so that they can make the right decision about their children's placement. That is why LEAs already have a duty, when a proposed statement is issued, to provide parents with information about non-maintained schools. Schedule 27 to the Education Act 1996 provides that LEAs must give written notice containing prescribed information before a statement is issued. That information is described in regulation 12 and part A of the schedule to the Education (Special Educational Needs) Regulations 1994. It currently includes a list of the non-maintained special schools that make special educational provision for pupils with special educational needs in England and Wales, and a list of independent schools in England and Wales that are approved as suitable for the admission of children with statements of special educational needs. 
 I assure the Committee that we intend to ensure that parents continue to receive information about independent schools and non-maintained special schools. Indeed, we intend to go further by placing a duty on LEAs to provide such information when they propose to amend the school or type of school in a child's statement. 
 The hon. Member for Daventry suggested that he was concerned that parent partnership services might seek to promote only one option and that parents might be discouraged from seeking a special school or non-maintained place for their child. That would be totally unacceptable. The role of parent partnerships is to disseminate accurate information on the range of options available to help parents make informed decisions for themselves. In addition to the measures that I have outlined, I can repeat the assurance given in the other place that these measures will form part of the minimum standards for parent partnership services, which will be set out in the revised code of practice. LEAs must have regard to the statutory guidance in the code, which will set out the minimum standards that we will expect all parent partnership services to deliver. The Secretary of State can use his powers under sections 496, 497 and 497A of the Education Act 1996 to intervene where LEAs are acting unreasonably, and these powers should help to ensure that LEAs fulfil their duties in respect of parent partnership services. In the light of those assurances, I hope that the hon. Gentleman will feel able to withdraw the amendment.

Tim Boswell: I am grateful to the Minister for those assurances. Just as she does not like to accept amendments that she regards as unnecessary, I do not like to press votes that I think are not essential. However, the Minister must keep an eye on the matter. As she said, it will be clear to everyone, through guidance and the inspection process, that the matter must be treated in good faith.

John Hayes: I mentioned earlier, but perhaps it is worth repeating, that when Baroness Warnock produced her report on these matters, she referred, in paragraph 3 of chapter 5, to the provision of a handbook for parents, which would describe all the options open to them. The current law suggests that LEAs should provide lists of options, and, of course, parent partnerships will provide fuller information, but perhaps the Minister would consider the idea of a handbook as a means of satisfying our demands, to which I am sure that she is sympathetic.

Tim Boswell: That was a characteristically constructive suggestion. In these days of information technology and desktop publishing, a handbook could be revised and kept up to date very quickly.

John Hayes: An electronic handbook, perhaps?

Tim Boswell: That may be, though some of us would need a printed version in order to read it effectively. However, I am not suggesting that parents should not have it in that format. Much could be done. There is a common interest in improving the situation and, indeed, in exposing local authority practice, if it is less than ideal.
 I took great interest in and some comfort from the Minister's reference, for the second time, to clauses 495-497 of the Education Act 1996, relating to the Minister's power to intervene on local education authorities that resort to, what I might loosely call, monkey business. It is important that we should look into that a little more. It has relevance to coming events and to how matters should be conducted in future. I am sure that the Committee agrees that we need to secure good practice and that local authorities will rightly have slightly different approaches but that they must all discharge a proper minimum standard to be fair to parents and, in the long run, to advance the cause of education and of local authorities, because proper provision must be right all round. That said, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 2 ordered to stand part of the Bill.

Clause 3 - Resolution of disputes

Tim Boswell: I beg to move amendment No. 8, in page 4, line 20, after `authority', insert `, acting in good faith,'.

Mr Bill O'Brien: With this, it will be convenient to consider amendment No. 9, in page 4, line 27, at end insert
`and the authority must make that right clear to parents in advance of any procedure under this section.'.

Tim Boswell: We are now motoring, as we should. The amendments are entirely consistent with our previous debate, albeit in a slightly different context. They concern the resolution of disputes. It must be right to look for mediation, not litigationa simple answerwhere possible. I need only make clearas the Government have already suggestedthat that should not remove parents' statutory rights. Amendment No. 9 makes it clear that there should be no attempt to cover up those rights. Amendment. No. 8 concerns an authority ``acting in good faith''for precisely the reasons that I rehearsed in relation to advice and information.
 To go back to Churchill's phrase, we want ``jaw-jaw'' rather than ``war-war''. Parents of children with special educational needs have enough difficulties without having to go through a protracted process. We have already said enough to suggest that the intervention of the lawyers, although occasionally necessary, is not always desirable. I hope that we will approach the matter in that spirit. 
 Let me refer to something a little more contemporary than a Prime Minister of more than 50 years ago. The experience of the Advisory, Conciliation and Arbitration Service in dealing with industrial disputes and individual employment tribunals has been helpful and constructive. As the Minister will know, I have experience of legislation in that area. In the guidance, there may well be suggestion that LEAs and ACAS run alongside one another; they may learn lessons from each other. Of course, there are other exemplary mediation services. The Law Society is taking an interest in the matter. It is not always best for cases to come to tribunal or court, but that cuts both ways. There is not only an obligation on the parents to discuss the resolution of disputes but an obligation on the authoritywhich the amendments are intended to secureto act in good faith. It contains the experts who deal with the matter day to day; the parents are not the experts, but are the lay party, directly involved, who must be properly treated and given all the information about their legal rights as well as the opportunity of a sensible and informal resolution of their problems.

John Hayes: I want to set my hon. Friend's remarks in context. First, for the sake of accuracyI know that my hon. Friend would not want any inaccuracy to remain on the recordWinston Churchill ceased to be Prime Minister rather less than 50 years ago.

Tim Boswell: I am delighted that my hon. Friend was paying such close attention to my words. At the time of my reference, Winston Churchill was talking about the need to go to war, and I was thinking of his period as the wartime Prime Minister, rather than his post-war Government.

Mr Bill O'Brien: Order. We seem to be drifting from the amendment.

John Hayes: Thank you, Mr. O'Brien. You have brought us back up to date, as you always do.
 The context in which I want to place my hon. Friend's remarks is one that pervades much experience of hon. Members of the matter. It is best summed up by anecdote. I know of parents who feel bamboozled and disadvantaged. They feel that in trying to obtain the best deal for their special needs child they have entered an esoteric world in which they may feel that they are not always treated with appropriate sensitivity and where they may not always have the impression that their views are given sufficient weight. That is not uniformly true, and I do not think that anyone desires it. However, it is the experience of many parents of children with special needs. 
 We need, in a sense, to overcompensate in favour of parents when it comes to resolving disputes and disagreements about provision. The Committee has a responsibility to understand the vulnerability of not only the children but the whole family when faced with such difficult and life-changing choices. That is the context in which I want to place the very proper remarks of my hon. Friend.

Laurence Robertson: Does my hon. Friend accept that the parents who must try to find a way through the minefield are sometimes less well equipped to do so than other parents might be?

John Hayes: It is fair to say that a disproportionate number of parents of special needs children are themselves disadvantaged. Some come from poor or deprived homes and may themselves have special needs. Some may be from broken families, in the case of statemented children with emotional and behavioural difficulties. I do not want to generalise, but there is a germ of truth in what my hon. Friend says. The process is difficult and complex, almost by definition. People feel vulnerable when they are going through it. There may be a sense in which people, to paraphrase T.S. Eliot, are convinced by too little, and know too muchor at least are presented with too much, whether they know it or not. We must be aware of that in considering the amendment and my hon. Friend's remarks. I know that the Minister will be sensitive to those concerns and I hope that she will set her remarks in context.

Jacqui Smith: There appears to be widespread support in the Committee for the objective of the clause, which is to place a duty on local education authorities to make arrangements to prevent and resolve disputesboth between parents and a wide range of schools over provision for a child's special education needs, and between parents and local education authorities or maintained schools over their carrying out of special educational needs functions. Of course we are sensitive to parents' different needs from the system. Our proposals are intended precisely to prevent parents from being bamboozled, in the words of the hon. Member for South Holland and The Deepings.
 The new arrangements should be informal. They are designed to be put into practice in a flexible way to ensure that they meet parents' needs. Their purpose is not to abolish parents' rights. Parents will, of course, enter voluntarily into the new arrangements. I hope that that point, and some others that I want to make, will convince the Opposition that the amendments are unnecessary. 
 The service will have to be neutral if it is to be successful. Its role will not be to apportion blame, to take one side over another or to act in a partisan manner. It is intended simply to bring together parties who are in disagreement, in pursuit of a solution acceptable to all. If it is to have credibility with parents, it must be independent. Parents want that, and the LEA and parents must feel that their views are being properly considered; or our objectives will not be achieved.

Tim Boswell: I simply want to put this point down as a marker, as we may be interrupted shortly. To what extent will the service in any local authority be run past anyone else; what advice or other support will be given in relation to practice in other authorities? No one suggests uniformity, but we need a common approach on some of the issues.

Jacqui Smith: I hope to finish our discussions relatively quickly. On conciliation, we recognise that minimum standards for the function of dispute prevention and resolution services must be met. That is why, again, the code will set out the minimum standards that we expect
 It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
Adjourned till this day at half-past One o'clock.